On The Duty Of Care Of Short-form Video Platforms In Copyright Infringement

With the continuous development of science and technology,short-form videos are dominating the Internet with their powerful influence.While Chinese legislation is general and relatively lagging,infringements involving short-form videos happen frequently.In judicial practice,the court usually determines whether the short-form video platform has fulfilled the corresponding duty of care by recognizing whether there is negligence,so as to determine whether the platform should bear the responsibility of infringement.Therefore,the duty of care of the short-form video platform is a key factor in exploring whether the platform infringes or not.At present,in China the relevant provisions of the duty of care of network service providers are used to determine whether the short-form video platform has fulfilled the duty of care.It is true that the short-form video platform meets the definition of network service provider,but as the platform gains more initiative,it is gradually deviating from the neutral position of a technology provider.Treating short-form videos as commercial products,the platform enjoys the initiative of uploading and disseminating short-form videos.Correspondingly its duty of care should change,so the basic as well as the extended meaning of the duty of care should have more contemporary characteristics.However,the current laws and regulations on short-form video platform tort liability are not clear,resulting in a series of problems in judicial practice concerning the determination of whether and to what extent the short-form video platform has fulfilled the duty of care.When providing Internet services,the network service provider should consider comprehensively the probability of infringement of the work,the nature of the network service provider’s services,the gains,its own intervention and other factors to determine how obvious the infringement facts are,so as to determine whether the platform has fulfilled its duty of care.From the perspective of some of the above factors,this paper analyzes the causes according to the infringement conditions,based on which solutions shall be put forward,in order to reduce and prevent infringement and create a sound network environment.First,this paper provides a brief overview of the short-video platform and its duty of care,clarifies the definition of the short-video platform,and highlights how short-video platforms differ from traditional video platforms and other network service providers as infringers.Meanwhile,this paper summarizes the existing laws,regulations and identifying criteria for the duty of care of short-form video platform in China.Secondly,starting from defining the scope of "short-form video platform duty of care"and in combination with the copyright infringement of the platform,the Civil Code of the People’s Republic of China,the Copyright Law of the People’s Republic of China and other relevant laws and regulations,this paper takes short-form video platform as the research object and summarizes the problems of the duty of care in the infringement liability of short-form video platform into the following aspects.First,it is very difficult to detect and identify the infringement of User Generated Content("UGC")because of its strong replicability and concealment.It is very difficult to protect the copyright of both popular works and original works of users with small number of fans,and it is costly for UGC right holders to defend their rights.Meanwhile short-form video platforms can often obtain large revenue.So there is a conflict of interest between platforms and right holders.Secondly,one of the criteria for determining the duty of care is infringement probability.Popular videos infringe frequently with a high infringement probability,but the platform lacks a uniform standard for the duty of care for popular short-form videos.Third,the use of algorithmic recommendation technology has changed the role of the platform,which gradually changes from a neutral to initiative,editing and recommending contents.Also,the platform has gained great revenue in the algorithmic recommendation process which to a certain extent has changed the criteria for identifying the duty of care.Finally,this paper proposes a series of solutions to the above problems.The first solution is to improve the "safe harbor" principle with the duty of care as its core,by analyzing the relationship between the duty of censoring and the duty of care.It is proposed that filtering technology should be adopted to strictly limit the scope of review of the platform,so that its rights and responsibilities are consistent,in order to comply with the principle of proportionality.The second solution suggests that the duty of care of network service providers to high-traffic works should be improved.The third solution is to formulate a fair cost-sharing mechanism for copyright content filtering,properly adjust the existing content publishing process of platforms and users,and add the model of "ex ante independent classification by users,cooperation between copyright owners and platforms,and increased punishment afterwards" to the original copyright censoring process based on the analysis of ex ante defense and punitive damages.This method not only solves the problem of high filtering cost of the platform,but also indirectly cultivates users’ awareness of copyright protection,thus building a model of shared governance among all social sectors.